The 2019 BBC drama Responsible Child (pictured) recently featured in Netflix UK’s top-10 most-watched films. Based on a true story, it follows Ray, a 12-year-old boy charged and put on trial alongside his adult brother for murder. Its renewed popularity has prompted fresh debate about the criminal age of responsibility in England and Wales, which at 10 years old remains one of the lowest in Europe.
That debate is particularly relevant given the proposed amendment to the Crime and Policing Bill, yet to be considered, which seeks to raise the criminal age of responsibility to 14. The effect would be that no child under the age of 14 could be prosecuted for a criminal offence. The amendment is backed by baronesses Chakrabarti, Hale and Butler-Sloss. Their backing invites renewed examination of whether a 10-year-old has the capacity to understand right from wrong, and why our domestic approach to children diverges from that of many comparable jurisdictions.
The law
Section 50 of the Children and Young Persons Act 1933 provides that it is conclusively presumed that no child under the age of 10 can be guilty of a criminal offence. Prior to section 34 of the Crime and Disorder Act 1998, there was an important qualification to this in the form of the doli incapax principle, under which a child aged between 10 and 14 was presumed incapable of committing a crime unless the prosecution could prove that the child knew their conduct was ‘seriously wrong, rather than merely naughty or mischievous’. It was a principle that had stood for over 700 years.
Its abolition in 1998 rendered children aged 10 and above fully responsible for their criminal actions. Notably, it was abolished without any accompanying review of the law governing children’s behaviour, notwithstanding the recommendation of the law lords in C (A Minor) v DPP [1995]. In that decision, their lordships articulated several concerns regarding the operation of a low age of criminal responsibility in the absence of the protective doctrine of doli incapax.
The removal of doli incapax was, at least implicitly, an acknowledgement that children in the age range of 10 to 14 are capable of forming criminal intent. Yet that assumption sits uneasily with what is now understood about child development. Other jurisdictions continue to recognise this evolving understanding; for example, Australia retains a version of the principle.
Internationally, the UK’s position is becoming isolated. Article 40(3) of the UN Convention on the Rights of the Child obliges states to establish a minimum age of criminal responsibility. While no specific age is prescribed, 14 is the most common minimum across Europe. Several other countries set it higher still. Even our devolved neighbour Scotland, which historically had a lower threshold at eight years of age, has now raised it to 12. England and Wales have been criticised by the UN Committee Against Torture (2019) for maintaining this low age of criminal responsibility.
Why raise it?
In its General Comment No. 24 (2019), the UN Committee on the Rights of the Child urged states to take into account advances in neuroscience and to raise the minimum age of criminal responsibility to at least 14. Indeed, there is now a substantial body of research that demonstrates children below the age of 14 have developmentally immature brains. While they may understand right from wrong in the basic sense, they lack the impulse control, ability to risk-assess and foresight that is present in older adolescents and adults.
The pre-frontal cortex (critical for decision- making and behaviour regulation) is not fully developed at the age of 10. This also has implications for a child’s ability to participate in criminal proceedings: expecting a child to understand the trial process or to grasp the long-term consequences of conviction is often unrealistic.
There is also undeniable inconsistency in the law. Children aged 10 and above cannot consent to sex, purchase alcohol or even own a pet, yet are held fully culpable for criminal offences. Lord Dholakia, debating his Age of Criminal Responsibility Bill in 2017, rightly observed that it is illogical to afford legal protection on grounds of immaturity in one context, while adopting the opposite approach in another. The tension is further demonstrated by the fact that an adult with the developmental age of a child may be found unfit to plead, while an actual child is not afforded equivalent consideration.
Conclusion
Crimes committed by children can still have devastating consequences, and other developed jurisdictions retain similarly low thresholds, for example, Switzerland, Northern Ireland and parts of the US. Being ‘tough on crime’ remains an attractive slogan, while reform is easily characterised as leniency. The Association of Youth Justice has described government resistance as an ideological commitment rather than a reasoned assessment of effectiveness. Indeed, the tragic murder of James Bulger in 1993 has been considered an influential factor in the abolition of doli incapax.
Ultimately, however, youths within the offending demographic will often have been failed long before they encounter criminal courts. Diverting them towards welfare-based interventions is more humane and better aligned with contemporary evolving standards of decency than a system devised over half a century ago. For these reasons, amending the Crime and Policing Bill to raise the age of criminal responsibility to 14 would be a positive and evidence-based step.
Gemma Motion is an associate at Corker Binning, London
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